Jurors are instructed not to visit the scene of a crime, or conduct any investigation on their own.  They’re told that they may not consider any evidence not presented to them in court.  And it’s presumed that jurors follow these instructions. When they don’t, they may be dismissed from the jury or, should matters undermine the integrity of the proceeding, bust the trial.

But then, Richard Posner isn’t a juror, but a judge on the 7th Circuit Court of Appeals. He doesn’t have to follow no stinkin’ rules.  Josh Blackman posts about what he calls Posner’s “fashion show” in his consideration of the appeal in Mitchell v. JCG Industries.  It begins with a rather pedestrian problem, that the court was confronted with two different factual claims, pretty much like every other trial.

The district judge did not opine on how long the donning and doffing take, a question difficult to answer in the usual way of judicial fact determination. The plaintiffs would testi‐ fy that it takes 10 to 15 minutes, the employer that it takes only 2 to 3 minutes, and how would a judge or jury know who was telling the truth? The plaintiffs could be filmed changing, but their incentive would be to dawdle; the company could doubtless find a few speed demons among the workers. The limitations of the trial process as a method of finding certain types of fact must be recognized.

Why yes, Judge Posner, how would a judge or jury know who was telling the truth?  How would they ever?  Your epiphany is very much appreciated, given that this question has been so long overlooked that our prisons are filled with people convicted because a judge or jury has decided to accept the word of a cop rather than a defendant or his witnesses.  Because how would they know who was telling the truth?

But Posner didn’t stop with this important rhetorical question. Instead, he chose to disregard the basic rule of appellate procedure that the case be decided on the evidence presented in the court below, and instead do what should never be done.

One of us decided to experiment with a novel approach. It involved first identifying the clothing/equipment that the defendant’s plants use and buying it (it is inexpensive) from the supplier. Upon arrival of the clothing/equipment three members of the court’s staff donned/doffed it as they would do if they were workers at the plant. Their endeavors were videotaped. The videotape automatically recorded the time consumed in donning and doffing and also enabled verification that the “workers” were neither rushing nor dawdling.

The videotape reveals that the average time it takes to re‐ move the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds. The total, 110 seconds, is less than two minutes, even though the “actors” had never worked in a poultry processing plant and were therefore in‐ experienced donners/doffers of the items in question.

Josh does an excellent job of explaining why this re-enactment is deeply, irrevocably flawed.  It’s not that it may not be factually accurate, but that it’s an indulgence that flies in the face of the very heart of the concept of evidence.  Posner, no dummy he, tries to dig his way out of his hole:

This was not “evidence”—the intention was to satisfy curiosity rather than to engage in appellate factfinding—but it is information that confirms the common sense intuition that donning and doffing a few simple pieces of clothing and equipment do not eat up half the lunch break.

And therein lies the ugliness at the bottom of the pit: that the standard by which judges decide is “common sense intuition.”  Ultimately, the magic isn’t in the evidence, or even the burden of proof.  Oh no, it’s not about thinking, but feeling.  At the end of the day, what feels right to the judge.

This 7th Circuit Fashion Show is not merely a horribly misguided effort in law clerk attire, but a demonstration that our worst fears of what happens behind close chambers doors is real.  The banal arguments, why would the cop lie, for example, comport with judges’ common sense intuition, and so conclusively inform the court that the prosecution wins and the defendant loses, with the rest of the effort put into coming up with some law-ish sounding explanation to justify the outcome.

But consider what this means for cases like Weev’s, recently argued before the 3rd Circuit.  The government’s pitch to the court that if they want to understand how “normal” people use the internet, they should ask their clerks, is nothing more than a variation on the fashion show.  It’s a play upon the judge’s technological ignorance, and their “common sense intuition” that all kids are digital natives, and so they are all internet wizards.  If their clerks don’t use the internet the way Weev did, then he’s a witch. A guilty witch.

The possibilities are endless for judges to conduct secret experiments in their chambers, or on the streets, or, if they have any clue how to gain access, on the internet, to figure out “who was telling the truth.”  The flaws of the experiment will never be known, never be subject to question or challenge, and yet will dictate the outcome for people’s lives and fortunes.  What could possibly go wrong?

In a way, Judge Posner should be thanked for revealing what goes on behind the curtain, with this silly indulgence of having his staff put on orange jumpsuits and masks.

If he likes the look, he really ought to spend some time in a federal prison. They come in khaki too, but the hard hat, mask, gloves and shoes would have to go. Rules, you know.

And now that we know that it’s really not about evidence or burden of proof, but just the common sense intuition of some old guys who have never had the misfortune to know how life affects those who have suffered the indignity of being on the wrong side of the government, we can adjust our sights accordingly.  Perhaps it would save time if, instead of trying cases and presenting proof, we just bought our clients an orange jumpsuit from the 7th Circuit’s spring collection?